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A business sign in Downtown Stephen, New Brunswick displaying a notice of reduced hours due to Covid-19 on March 21, 2020.John Morris/The Globe and Mail

The Question

Our employer returned from a trip outside of Canada. He was aware of the two-week self-quarantine but has been “self-quarantining” in his office during the day within our small workplace and working regular hours. If this is illegal, what can we do about it?

The First Answer

Amiri Dear, lawyer, Hummingbird Lawyers LLP, Toronto

Every employee has the right to a safe work environment. The Occupational Health and Safety Act (OHSA) addresses basic work-related rights, which include the right to refuse work that could affect worker health and safety.

In this case, the worker has the right to refuse work. If you have reasonable grounds to believe that the physical condition of the workplace may endanger you, you should certainly address this. It is reasonable in the present circumstances to express concern regarding the possibility of contracting COVID-19 due to your employer’s recent travels, especially if he has visited a jurisdiction where COVID-19 is prevalent.

If you believe the work environment is unsafe, you should first report these concerns to your employer. The employer is required to investigate these concerns. If you are not satisfied with the investigation, you must notify the Ministry of Labour, Training and Skills Development, which will designate an inspector to investigate. During the Ministry's investigation, safety is a priority and you may be required to work away from the office.

An employer is prohibited from penalizing, dismissing, disciplining, suspending or threatening a worker who seeks enforcement of these provisions of the OHSA.

Currently, the Federal Quarantine Act requires all travellers returning to Canada, on or after March 26, to self-isolate for 14 days. Further, travellers who present symptoms of COVID-19 after arriving in Canada are prohibited from isolating in a place where they will be in contact with vulnerable persons.

This should in future alleviate similar concerns regarding individuals returning to the workplace.

The Second Answer

Nabila Khan, Associate Lawyer, Ryan Edmonds Workplace Counsel, Toronto

Each Canadian jurisdiction has occupational health and safety laws that requires employers to take reasonable precautions to protect their workers.

These protections would most certainly include precautions meant to limit the risk of contracting COVID-19 in the workplace. Such measures can include requiring employees to work from home, providing personal protective equipment, such as masks, gloves and sanitizer, or requiring workers who may have been infected to self-quarantine at home. The specific precautions required will vary depending on the type of business, size of the workforce, proximity between workers and the public and guidance from health officials.

When employers fail to take reasonable precautions, most employees (aside from some jobs which are exempt, such as police officers, firefighters and health-care workers) have a right to refuse unsafe work. The level of danger required to sustain a work refusal largely depends on the nature of the job and the inherent risks it may pose. For example, public-facing jobs may come with a higher tolerance for potentially contracting infectious diseases, just as working around heavy machinery or at extreme heights poses their own inherent risks. The health condition of the employee may be a relevant factor as well, such as if he or she is immunocompromised.

Thus, if an employer has failed to take reasonable precautions and that has created a real risk of contracting COVID-19 at work, an employee can refuse to attend the workplace. Generally speaking, that involves contacting the Ministry of Labour who will then dispatch an investigator to determine whether the work refusal was warranted.

Alternatively, employees with a greater risk of health complications, or who are associated with someone at risk, may request accommodation under human rights laws to work from home or otherwise distance themselves from the workplace using vacation time or leaves of absence.

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